With N.F.L. Concussion Deal, Two Tiers of Payouts

Court settlements are by nature compromises, and compromises are often messy. The proposed settlement of the lawsuits brought by more than 4,500 former N.F.L. players who contended that the league hid from them the dangers of concussions is no exception.

The N.F.L. agreed last summer to pay $765 million for medical monitoring and potential payments to those with significant illnesses, but it wanted all 18,000 or so retired players, not just those who sued, to be included in the deal.

By expanding the number of players who could benefit, the N.F.L. would help more former players. But anyone who agrees to the settlement will give up the right to sue the league, so the N.F.L. would also largely inoculate itself from further costly and embarrassing suits.

Yet one of the consequences of this structure is that it creates two tiers of retired players: those who sued the league and must pay their lawyers a percentage of any cash awards, and those who never sued the league but are eligible to receive money without paying legal fees. In effect, the players who took the initiative to sue and helped push the league to settle will be penalized. That structure irks some retired players, like Frank Sutton, who played one season as a Giants tackle.

“I believe in equity, and I believe in being involved in something and being held to the same standard,” said Sutton, 49, who joined a suit against the N.F.L. that was first filed in federal court in Mississippi because he said has headaches, neck and head pain, and some memory problems. “After they found out the ball is rolling, they wanted to take part. Those just coming in, it should be the same.”

Contingency fees are common in personal-injury suits, and their size varies widely by state, lawyer and type of case. Lawyers might take 33 percent of a cash award from a settlement, 40 percent if it goes to trial and 50 percent if the case is appealed. Some states cap fees. Some plaintiffs pay their lawyers by the hour.

If Sutton receives any cash — and there is no guarantee he will — he will have to pay his lawyer, Philip Thomas, one-third of his award. If Sutton receives only medical tests or treatment from the settlement, Thomas will have essentially represented Sutton for free. Thomas said he would be willing to lower his fee to 25 percent, but that does not make his clients feel any better because other former players may pay no contingency fees at all.

“It could be millions of dollars if you’re talking about players with A.L.S. and a 30 percent contingency,” said Thomas, who helps represent 177 former players. “The players who forced the settlement, if anything, they should be rewarded, not penalized.”

Thomas said he planned to file an objection with the court before he decided whether to advise his clients to opt out.

It is unclear how many of the 18,000 former players may receive a cash award, which is based on a player’s injury, age and years of N.F.L. service. In the settlement, former players with amyotrophic lateral sclerosis (known as A.L.S., or Lou Gehrig’s disease), Parkinson’s disease or other serious ailments could receive up to $5 million. Older retirees would receive less than younger ones, and players with less than five years of N.F.L. experience would have any cash awards discounted.

Thomas said about 20 percent of his clients “have already suffered an impairment” and might receive a payment. Fifty percent or 60 percent have “minor cognitive issues that they attribute to football, but that may not qualify for a monetary award,” he said.

All of them, he added, “are worried about the increased risk of these issues in the future.”

Judge Anita B. Brody of the United States District Court for the Eastern District of Pennsylvania has wide latitude over legal fees and must decide whether the settlement is fair before she signs off on it. She could ask the plaintiffs’ lawyers and the N.F.L. to amend the agreement.

Asked about the potential disparity in cash awards, Christopher Seeger, a co-lead counsel who helped negotiate the agreement, responded with a statement: “Achieving this settlement would not have been possible without the nearly 5,000 retired players who brought this litigation. Their decision to step forward led to this historic deal which will provide benefits to all retired players. Moreover, by raising awareness about concussions and other head injuries, these men have made football safer at every level of the sport.”

The inequity is partly a result of how the settlement was reached. Starting a few years ago, retired players filed hundreds of suits across the country. Because they were similar, they were consolidated in Brody’s court in Philadelphia, where she heard pretrial motions, including the N.F.L.’s argument that the cases should be dismissed.

Last year, she appointed a mediator to bring the sides closer, and in August, the league and lawyers for the retired players agreed on an outline for the settlement. Last Monday, the full details of the proposed settlement were filed with the court.

But no language in the settlement addresses the cash awards that players who sued would receive and those that players who did not sue would receive. Some lawyers suggest the gap is common in cases that are widened to include many more people.

But legal experts said that the system was unfair and that lawyers who settled the case should represent the interests of all 18,000 former players.

“There are several conflicts of interest, including one between the 4,500 players who sued and the rest of the players,” said Lester Brickman, a professor at the Cardozo School of Law in Manhattan who is an expert on class-action cases. “If you are pitting one class against another, it might be struck down by an appellate court because of conflict of interest. There would be winners and losers.”

In a conference call with reporters last week, Seeger said lawyers who agreed to be paid contingency fees should seek them from their clients. But they could also apply for a portion of the $112.5 million in legal fees that were set aside.

That might not close the gap between the players who sued the league and those who were later included in the settlement.

“When they saw money on the table, that harkened their interest,” said Vernon Perry, 60, a defensive back who played five seasons for the Houston Oilers and the New Orleans Saints and is a co-plaintiff with Sutton because he said he has headaches and memory loss. “All guys need to be signed up.”

A version of this article appears in print on , on Page SP2 of the New York edition with the headline: Concussion Deal: 2 Tiers of Payouts, and 2 Levels of Responsibility. Order Reprints | Today’s Paper | Subscribe